Case Western Reserve Journal ofInternational Law

Volume 10 | Issue 1

1978

Notes on the Role of the Judiciary in theConstitutional Systems of East Africa SinceIndependenceSteven B. Pfeiffer

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Recommended CitationSteven B. Pfeiffer, Notes on the Role of the Judiciary in the Constitutional Systems of East Africa Since Independence, 10 Case W. Res. J. Int'lL. 11 (1978)Available at: https://scholarlycommons.law.case.edu/jil/vol10/iss1/4

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Notes on the Role of the Judiciary in the

Constitutional Systems of East AfricaSince Independence

by Steven B. Pfeiffer*

This article examines the role of the courts in Kenya, Tanzania and Uganda since

their independence. The different roles structured for the courts by the three in-

dependence constitutions are contrasted against their backdrop of common historical

experience. The actual roles played by the courts, and the courts' perceptions of their

own powers of judicial review are discussed with an eye to the problems created by the

juxtaposition of the modern documents (the constitutions) and the political perceptions

of African legal practitioners, inevitably infused, after the English colonization, with

English attitudes about governmental balance.

CONTENTS

Introduction .............................................. 12

I. The Problem: Independence and the Role of

th e C ou rts ................................................ 13

II. The Colonial Background .................................. 19

III. The Independence Period .................................. 27

A . K en ya ............................................. 28

B . T anzania ........................................... 36

C . U gand a ............................................ 45

IV . Tentative Conclusions ...................................... 51

I give the devil the benefit of the

law for my own safety's sake.

Sir Thomas Morein

"A Man for All Seasons"

*Member of the New Jersey Bar; J.D., 1976, Yale Law School; M.A. Area

Studies (Africa), 1973, University of London; B.A. (Jurisprudence), 1971, Oxford

University; B.A. (Government), 1969, Wesleyan University; currently Associate ofFulbright & Jaworski, Houston, Texas.

CASE W. RES. J. INT'L L.

INTRODUCTION

FROM THE LATE 1950's until the present day the territories, col-onies, and later the new nations of English-speaking Africa have

been engaged in a continuing effort to develop their own national con-stitutions. The effort has been toward establishing in written constitu-tions the government structure and political system which would bestexpress the national political will and guide the nation through the dif-ficult early years of independence.

As a new nation struggles to state in legal form its own peculiarpolitical plans for independence, stability, and progress, it must facethe question of how to distribute its new sovereign power. This re-quires answers to a hundred difficult questions: Should the chief ex-ecutive be head of state as well as head of government? How shouldauthority be distributed between the executive and the nationallegislature? Should there be written, justiciable, fundamental humanrights in the Constitution as in the United States, or are these best leftprotected by the free expression of the national political will in Parlia-ment as in the United Kingdom? What roles are most appropriate forthe judiciary and the courts? How should judges be appointed orelected? Should the courts be allowed to undertake judicial review ofthe constitutionality of either legislation or administrative action, orboth? And, if political parties are to be mentioned in the national con-stitution at all, how many, and what kind of, parties should a constitu-tion countenance in order best to provide a productive balance be-tween free individual expression, legal political activity, and stable andprogressive governance? These are only a handful of the most obviousquestions which require answers.

For the purposes of this paper, the object of study and the focusfor constitutional comparisons is former British East Africa, now theindependent states of Kenya, Tanzania and Uganda. These nationstogether present a unique opportunity to examine the issues and prac-tical problems involved in a new state's effort to resolve difficult con-stitutional issues. Each of them enjoyed a different legal status withinthe British colonial system.' Their common pre-independence ex-periences under British rule, however, plus their geographical proximi-

'Kenya and Uganda began their colonial status as Protectorates. Kenya becamea Colony in 1920 while Uganda remained a British Proctectorate until independence.Tanganyika was administered as a Trust Territory under a League of Nations Man-date which later became a United Nations Mandate. Zanzibar, despite its Union withTanganyika in 1964, is outside the scope of this paper.

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ty and general cultural similarity,2 allow one to highlight the contrastsin their respective solutions of constitutional problems against a com-mon historical landscape.

The issue to be examined here is one of the major unresolved prob-lems confronting constitutional lawyers concerned with the establish-ment of a democratic political order: What should be the judicial rolein the constitutional distribution of authority at the national level? Inother words, in apportioning the power to affect national policy, whereand how, if at all, do the courts fit in?3

I. THE PROBLEM: INDEPENDENCE AND THE ROLE OF THE COURTS

The differences of opinion and practice in this area of constitu-tional law are both basic and numerous. Most obvious, of course, isthe traditional and fundamental difference between Great Britain andthe United States on the issue of the role of courts of law in the na-tional constitutional system. The former has neither a formal, writtenconstitution nor a tradition of judicial review. 4 In the latter almostevery national political issue becomes to some extent a question of thefederal courts' interpretation of the letter and spirit of a sparsely worded,two hundred year-old set of written rules.

2There is, of course, great diversity among the tribal African societies of EastAfrica, including their anthropological background, tribal size, culture, socialorganization, etc. The point here is that for the purposes of this paper, all three futurestates were populated predominantly by indigenous Africans with a numerically signifi-cant minority of Asians and/or Arabs, usually in the commercial sector, and a smalladministrative/agricultural European elite of varying size and importance.

'it is perhaps important to explain at the outset of the essay the considerable

constraint that limitations of time and space place upon a subject as broad as thiscomparative study must be. The theoretical questions are interesting and must becovered before proceeding to look at the constitutions and the constitutional casesthemselves. The emphasis inevitably will be upon an analysis of how the courts seem tobe doing in each of the three countries. As this is an essay and not a thesis, fieldresearch and all that that might provide in terms of access to unreported cases, inter-views with East African lawyers and judges, and local political opinion on the role ofthe judiciary has not been obtained by the author. The scope of the subject and par-ticularly its comparative nature have necessitated the emphasis upon drawing what Ihave called the "right conclusions" after a study of the relevant constitutional in-struments, legislation where relevant, cases decided in the courts of East Africa andreported in the East African Law Reports, and the research of publicists in this field.

4See E. MCWHINNEY, JUDICIAL REvIEW IN THE ENGLISH-SPEAKING WORLD(1965). There is, of course, a certain amount of judicial review of administrative actsin Britain, especially through the use of prerogative writs. The point is that a judicialchallenge to a particular policy of the executive (e.g., impoundment of appropriated

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Because the constitutional systems of Britain and the United Statesare the dominant ones in the English-speaking, common law world,and because Britain presided over the process of constitutional evolu-tion toward independence in East Africa, some mixture of British andAmerican constitutional theory was bound to determine the final formof the independence constitutions in Kenya, Tanzania and Uganda.That those responsible for this evolutionary process during the late1950's and early 1960's may not have looked hard enough for alter-native constitutional arrangements among those existing in non-Western industrial societies or traditional African societies is regret-table. It is understandable, however, given the fundamental philosoph-ical bias of the principals, and what was accepted as the generalstability and democratic political nature of Britain and the UnitedStates.

Generally Britain chose to emulate her own constitutional ar-rangements, but in written form, as the constitutional model for herformer colonies.' This became known as the "Westminster Model" ex-port version. It established legislative, executive, administrative andjudicial institutions along lines roughly equivalent to those in England.The single most important, and probably unavoidable, difference wasthe enactment of an elaborate written constitution in each new state.These were to be more than merely political statements describingachievements and goals. They were formal bodies of legal rules for theordering of political life which were superior in authority to ordinarystatutes. They were to be interpreted and upheld by an independentjudiciary. In Uganda and Kenya the independence constitutions con-tained extensive justiciable human rights provisions meant to securecertain fundamental individual liberties against the capricious or ar-

funds as in the United States) or to the constitutionality of legislation is unlikely andimpossible, respectively. A succinct examination of judicial review is provided by D.COWEN, THE FOUNDATION OF FREEDOM ch. 7 (1961). See also L. JAFFE, JUDICIAL CON-

TROL OF ADMINISTRATIVE ACTION (1965); A. BICKEL, THE LEAST DANGEROUS BRANCH

(1964); C. HAINES, THE AMERICAN DOCTRINE OF JUDICIAL SUPREMACY (1932); L.BOUDIN, GOVERNMENT BY JUDICIARY (1932).

'See S. DE SMITH, THE NEW COMMONWEALTH AND ITS CONSTITUTIONS (1964).See also K. WHEARE, MODERN CONSTITUTIONS (1966); Wolf-Phillips, Classification ofConstitutions, 18 POLITICAL STUD. 18 March, 1970. Perhaps the most striking exampleof this effort was the splitting of executive authority between a head of state and headof government. Tanganyika's commission to study a republican constitution reportedin the spring of 1962 that this was one of the least comprehensible aspects of that na-tion's independence constitution from the point of view of the average African.

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bitrary exercise of legislative or executive authority. In Tanzania suchprovisions were avoided; the independence constitution instead con-tained in its preamble an affirmation of the nation's commitment tothe human rights normally contained in traditional bills of rights.

It can be seen immediately from even the broad constitutionaloutlines described so far, that the national courts in East Africa werestructurally situated to occupy a position of some substantial politicalsignificance at the apex of national government. This was necessarilyso for the following reasons:

-The national judiciary was charged with upholding the higher pre-scriptions of the constitution from encroachment by legislativeenactment;6

-The existence of written constitutional limitations upon the powerof the executive in a constitution which was to be interpreted andupheld by the courts required the judiciary to stand against theunwarranted extension of executive authority;

-The presence in the independence constitutions of Uganda andKenya of justiciable human rights required, at the very least, judi-cial explication if not protection of highly sensitive politicalvalues.

The point here is a basic one: At independence the very nature ofthe constitutions in all three East African countries cast the nationalcourts into key positions within the "separation of powers" structure ofthe national government. One of the leading commentators on EastAfrican public law, J.P.W.B. McAuslan has described this prescribedrole of the independence judiciaries as that of being "institutions ofcontrol."' It seems clear that the British government accepted for in-stallation in East Africa a concept of the judiciary which Claire Palleylater summarized, in her analysis of courts and judges in the Common-wealth, in the following way: "If emotionalism and sentimentality areshed, the judiciary will be seen as a specialised institution within the

6It is at least arguable that this is true by definition whenever a "constitution" isamendable only through a process which is more stringent than that for the enactmentof a statute, and the constitution is ratified on the basis of its being a higher law. See,e.g., UGANDA CONST. of 1967, § 1. But other language may be used to convey the,same meaning, i.e., that the constitution prevails over the other national laws. SeeKENYA CONST. of 1969, § 1.

'McAuslan, The Evolution of Public Law in East Africa in the 1960s (pt. 2),1970 PuB. L. 153, 164. See also Ghai, Constitutions and the Political Order in EastAfrica, 21 INT'L & COMP. L.Q. 403 (1972); Palley, Rethinking the Judicial Role, 1ZAMBIA L.J. 1 (1969).

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structure of government . . . which also exercises functions protectiveof the individual as against governmental power." a What the Britishgovernment may not have appreciated sufficiently during the period ofrapid constitutional evolution prior to independence was the fun-damentally paradoxical nature of this arrangement.

At independence, the fledgling national courts of East Africa oc-cupied a constitutional status and role not unlike that of the federalcourts in tfe United States after the 1803 Supreme Court decision inMarbury v. Madison.9 But at the same time they were thoroughly im-bued with the formal conservatism of the legal and judicial culture ofEngland, and manned by individuals who were themselves products ofthat culture.10 To this incongruity one must add the fact that the in-dependent governments and courts of East Africa faced from theoutset the constant political pressures of attempting to govern in highlydiverse and dynamic developing societies.

Was it realistic to expect an institution as potentially powerful butinherently powerless as an "independent judiciary" to perform the rolethat East Africa's independence constitutions prescribed for the courts?McAuslan suggests that "[A]ny constitution which so subordinates ex-ecutive power to its control, as occurred in Kenya and Uganda par-ticularly, carries within itself the seeds of its own destruction."'"

Yet, as a former Solicitor-General (later to become Chief Justice) ofKenya has stated with some force, "[I]f constitutional laws are toqualify as such, independent courts of law must have the power touphold them, either by positive enforcement or by rendering ineffec-tual any breach of those laws, as may be appropriate."' 2 These twostatements, of course, do little more than describe the natural tensioninherent in judicial review. But as one looks deeper, as one must, intothe legal, political, social and economic context of East Africa, intowhich the structural seeds of judicial review were planted almost a

'Palley, supra note 7, at 35.

95 U.S. (1 Cranch) 137 (1803).l0 That culture held the separation of the courts from politics to be a very impor-

tant value indeed. Parliament is supreme in England; judicial review of officialbehavior is limited to egregious cases of improper administrative behavior, and prece-dent is only rarely overruled.

'1 McAuslan, The Evolution of Public Law in East Africa in the 1960s (pt. 1),1970 PUB. L. 5, 15.

I'Mwendwa, Constitutional Contrasts in the East African Territories, 1966 EASTAFR. L. TODAY 1.

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decade and a half ago, the complexity and difficulty of that semina-tion emerge.

The term "paradox" has been used above to describe the positionof each national judiciary in East Africa at independence. This isbecause in each country the courts were commissioned to perform afunction within the new national governments of Kenya, Uganda andTanzania which courts had not performed in Britain itself,' 3 nor inEast Africa during the colonial period,' 4 nor, in any analogous sense,in the vast majority of traditional African societies. 5 To the extentthat any external models can be of practical use in such situations, theconstitutional and judicial history of the United States might have beenof the greatest comparative value.' 6 A study of the complicated andprecarious politics of judicial review, which have evolved over two cen-

'5Supra note 10."See generally S. DE SMITH, supra note 5; H. MORRIS & J. READ, INDIRECT RULE

AND THE SEARCH FOR JUSTICE (1972); Y. GHAI & J. McAUSLAN, PUBLIC LAW AND

POLITICAL CHANGE IN KENYA (Nairobi 1970); J. COLE & W. DENISON, TANGANYIKA,

THC DEVELOPMENT OF ITS LAWS AND CONSTITUTION (1964); K. ROBERTS-WRAY, COM-

MONWEALTH AND COLONIAL LAW (1966); JUDICIAL AND LEGAL SYSTEMS IN AFRICA (2ded. A. Allott ed. 1970).

5See L. MAIR, PRIMITIVE GOVERNMENT (1962). Internal tribal political organiza-tion differed markedly from tribe to tribe, as Lucy Mair points out; nevertheless, as ageneralization, this statement is true. Perhaps as important for these purposes, it isbelieved to be true. See also M. FORTES & E. EVANS-PRITCHARD, AFRICAN POLITICAL

SYSTEMS (1940); TRIBES WITHOUT RULERS: STUDIES IN AFRICAN SEGMENTARY SYSTEMS

(J. Middleton & D. Tait eds. 1967)."This point has been made clearly and forcefully by B. NWABUEZE, PRESIDEN-

TIALISM IN COMMONWEALTH AFRICA 305 (1974):The older-established nations face exactly the same conflict of human rightsversus state security. It is said, however, that their approach to the problemis irrelevant to the conditions of a new nation which "has neither the longtradition of nationhood, nor the strong physical means of national security,which older countries take for granted." This is true if we view these oldercountries in their present state of maturity and advancement, and ignoretheir past history, when conditions then prevailing within them were fairlycomparable with those in the new states of today. When the strongest andmost advanced of these nations, the United States of America, emerged intoindependent statehood in 1783, it too had to grapple with the usual teethingproblems of infancy, problems of state security and of unity, and the meansthen available to it for dealing with these problems could hardly be said tohave been "stronger" or better organised than those at the disposal of thenew states today. The American approach to the conflict of state security ver-sus individual liberty is therefore relevant, both because America hadundergone a similar experience of colonial rule and of independence, and

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turies in the United States, would have helped the Bench and Bar ofEast Africa appreciate and succeed in the position into which theywere placed at independence. In both form and content, the autoch-thonous Indian and United States Constitutions, suited as they bothwere to new states with a widely heterogeneous citizenry and distinctminorities competing for influence, might have been a better modelfor the drafter of independence constitutions in East Africa than wasthat of Westminster. This is not to suggest that the Indian andAmerican constitutions were not considered at this time: In the areasof fundamental rights, judicial review and, to a lesser extent, separa-

tion of powers they clearly were considered. But the history of thisperiod of British colonial administration in Africa reveals a preoccupa-tion with capturing the English constitutional structure in a writtendocument. 7 Understandable though it may have been, as Professor deSmith and others have ably demonstrated,1 8 it proved an elusive goal.

Britain's unique constitutional system is the product of centuries ofpolitical development. The national political institutions of that coun-try have evolved out of not years or decades, but whole eras of institu-tional rivalry, whole generations of conflict, compromise, and con-solidation. The balance that now exists between Parliament, the ex-ecutive, the courts, the Monarchy, and the electorate is guided by aweight and conscience of custom which far outmeasures that ob-tainable by even the most eloquently stated and unanimously sup-ported modem document.

The creation of a constitutional/political order out of the vacuum

of colonial domination and government by executive decree is a totallydifferent exercise. There was in East Africa a great need to provide amap for the development of the nation's institutions of government, todelineate the kind of political system and the political values that thatnation would strive to build and protect, and also to provide an expec-tant polity with tangible evidence of constitutional progress already

also because it is governed under a written Constitution. That approach,

significantly, remains basically the same today as when the American nation

was formed in 1787 with the adoption of the Constitution. It was maintained,

even during the dark days of the greatest civil war known to history, andthrough the several smaller insurrections of which American history is replete,

such as the Dorr insurrection in Rhode Island in 1849. (emphasis added)

See generally B. NWABUEZE, CONSTITUTIONALISM IN THE EMERGENT STATES 14-20

(1973)."Supra note 5.18 d.

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achieved. These are all necessary functions of a constitution in a newstate; they also partially explain why in every case a newly independentnation will require a written constitution.

But the British have never liked the idea of written constitutions.In discussing the constitutional evolution of Canada, Australia andNew Zealand toward Dominion status in a manner consonant with thehistory of the British Constitutions, de Smith described this approachto constitutions as "[a] predilection for preserving ancient forms . . .and for awaiting the gradual crystallisation of ancient usages within atraditional framework [, this] was complemented by a deep distrust ofdefinitions, of inflexible statements of principle and of abrupt changeseffected by statute."' 9 It could be argued, then, that the creation andinstallation of a written constitution where one did not exist before wasmade especially tenuous in East Africa because the grantor of the in-dependence constitution was a state that organized its institutions ofgovernment according to custom rather than written dictum.

One might further ask whether any formal, entrenched, andelaborate constitution could be a workable plan for ordering politicallife and governance in a developing society with widespread illiteracyand limited infrastructure.

It will be the purpose of this essay to focus upon the role of the na-tional courts" in the constitutional law and political life of East Africaat and especially since independence in the early 1960's.

In retrospect, one looks back upon those enthusiastic, early days ofindependence with more than a little bewilderment. Could it haveseemed possible to the British authorities that the fledgling govern-ments of Kenya, Tanzania and Uganda, manned as they were by menreared in a traditional tribal environment and politicized during yearsof unquestioned supremacy of the Colonial Governor, would be con-tent to face the enormous tasks of nation-building inhibited by a con-stitution they did not write and judges they had neither appointed norwere able to legally remove? It will be useful to look first at the role ofthe courts during the British colonial period.

II. THE COLONIAL BACKGROUND

In the case of each of the three East African territories, Orders inCouncil issued in London early in the twentieth century established the

"S. DE SMITH, supra note 5, at 1-2."The High Court in each of the three countries will be the focus; it is these "na-

tional courts" which have the specific authority to uphold the constitution.

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authority of the British Crown over the area concerned and placed aGovernor 2 in charge as the Crown's representative.22 An ExecutiveCouncil was established by the original or a subsequent Order inCouncil or Royal Instruction to sit with the Governor as a form of em-bryonic mini-cabinet.23 A Legislative Council was similarly established,as was a judicial system consisting of a High Court with a Chief Justiceand a number of puisne judges appointed by the Governor. Judicialappointments were made upon the advice of the Colonial Office. Latersuch subordinate courts as were necessary were instituted in each ofthe three East African territories. 24

The establishment and development of the executive, legislativeand judicial functions occurred at a different time and pace in eachterritory. 25 In all three areas, however, the pattern of colonial ad-ministration was basically the same: The executive powers of theGovernor were to be dominant over the collective will of a LegislativeCouncil, which in any case consisted solely of ex officio and appointedmembers until well into the 1950's.

The peculiarities of the constitutional evolution of each country aretoo numerous to be included here. For now it is important to deter-

21 1n the case of Kenya, known as the East African Protectorate until 1920, the

chief executive officer of the administration was known as "Commissioner" until 1905,after which time the term "Governor" was employed.

21This occurred at different times in each territory: 1897 for Kenya, 1902 forUganda, and 1920 for Tanganyika. An example of the language empowering the-Governor is that used in the Tanganyika Order in Council, 1920 where it stated thatthe Governor was "authorized, empowered, and commanded to do and execute all thethings that belong to his said office according to the tenor of any Order in Councilrelating to the territory, and of such Commission and Instructions as may be issued tohim ....

"Initially membership was exclusively official and the Council served in an ad-visory capacity only; for example, in Tanganyika the Chief Secretary, the Attorney-General, the Treasurer, and the Director of Medical and Sanitary Affairs made up theoriginal Executive Council.

"4These differed slightly from one territory to another. The establishment andalteration of the court systems of East Africa is carefully charted in JUDICIAL AND

LEGAL SYSTEMS IN AFRICA, supra note 14; see also 1962 ed.

"There is a full literature on the constitutional evolution of the East African ter-ritories. In fact, the literature on colonial history generally is so rich that even themost superficial outline, as attempted here, is difficult to draw without offending animportant distinction somewhere. My purpose is not to summarize effectively or eveninform generally, but rather merely to set the stage for a consideration of the judiciaryduring the colonial period.

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mine the effect of the colonial period generally upon the developmentof the courts as institutions of government. Later, at independence,the national courts were expected to become "institutions of control"over the authority exercised by the legislative and executive branchesof the independent governments of Kenya, Tanzania and Uganda. Ifone considers the operation and composition of the courts during thecolonial period, and particularly just prior to independence, the prob-lems involved in assigning the judiciary an important protective func-tion after independence become more understandable.

There were at least seven characteristics of the judiciary in EastAfrica during the colonial period that encumbered the establishmentof an independent judiciary capable of limiting government powerafter independence. These are worth reviewing:

1. The dual courts system

Each East African territory had a dual system of courts. Thesewere distinct and separate judicial systems: One to administer thegeneral law2 6 established by the colonial administration, the other tosettle disputes arising among members of the indigenous Africanpopulation. And although an integration of the court systems tookplace after independence, at issue in the 1920's and 1930's was whetherthe African courts were to be administered by the District and Pro-vince Officers of the colonial administration (with appeals going up tothe Governor) or be part of the judicial system headed by the ChiefJustice of the High Court. The issue was a basic one: Should a mar-riage of the executive and judicial branches of government be allowedat the local level? Sir Donald Cameron, Governor of Tanganyika in the1920's and a great proponent of the "Indirect Rule" system of colonialadministration, thought that it should. 27 Against the opposition of the

26"General law" meant the entirety of the law established by the colonial ad-ministration; African customary law was excluded. For example, in Kenya the generallaw consisted of certain Codes and Acts of India, locally enacted statutes, and so far asthese did not apply, the Common Law, doctrines of equity, and statutes of general ap-plication in force in England on August 12, 1897.

27Cameron expressed his views on this subject in the following words from a Con-

fidential Dispatch to London, Feb. 17, 1927, reprinted in H. MORRIS & J. READ,

supra note 14, at 146:In native tribes such as those in Tanganyika, judicial and executive

powers are combined in the chiefs and the native courts which we have are avital part of the machinery of native administration. They are no part of theordinary judicial system based on European ideas and, this belongs so, the

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Chief Justice of Tanganyika and other persons sensitive to the tradi-tional "independence" of the judiciary from the executive, GovernorCameron obtained his desired Native Courts Ordinance in 1929.Although the separation of the African courts from the national courtswas never to be as complete in the other two judicial systems in EastAfrica as in Tanganyika, the Governors of Kenya and Uganda re-quested similar native court systems within the year. Moreover, in allthree countries, administrative officers exercised wide judicial powersas local magistrates.2" H. F. Morris explains that the role of thejudiciary in the process of native court development was insignificantuntil at least the 1950's. According to Morris, "few judges or residentmagistrates during the colonial period showed any interest in, orknowledge of, customary law or the workings of the native-courtsystem. '" 9 It was at times even considered advantageous that theDistrict Officer presiding over the settlement of a dispute did not havelegal technicalities of evidence and proof before him to threaten "effi-cient" justice.30

In 1953 the first Judicial Advisers' Conference encouraged changeby recommending the gradual separation of judicial and administrativeauthority."' But by then the fusion of the executive and judicial func-tions in the person and office of the Governor's District Officer musthave made some impression upon future African leaders. The situationis tellingly summarized by Morris:

It was accepted that the union of executive and judicial functions inthe same person was contrary to British theory and practice, but, itwould be maintained, this had always been a feature of African lifeand the African public saw nothing wrong in it: moreover, thedistrict officer would argue, it would not have been practicable oradvisable, in the interests of good government, to have attempted toseparate the two.3 2

native courts should be under the supervision of the administrative officersand not under that of the High Court. The reasons are obvious: the judges ofthe High Court know nothing of the language, the customs and the modes oflife and thought of the natives, whereas, on the other hand, the natives knownothing of the High Court and do not understand its intervention betweenthemselves and their administrative officers, who in their eyes represent theGovernor.2'See H. MORRIS & J. READ, supra note 14, chs. 5, 9.29Id. at 132.301d."1Id. at 161-62."Id. at 134.

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2. The predominance of the administration during thecolonial period

The Governor, the Queen's representative, was the fount of officialauthority in colonial East Africa. His representatives, scattered overhundreds of miles of rugged, undeveloped countryside, were the ob-vious, and often the only, figures seen by local indigenous communitiesto possess political legitimacy and influence. The previous point ex-plains the position of the local judiciary, and its integration into theadministrative service at the local level. As mentioned above, Legis-lative Councils developed later and slowly. Until just prior to in-dependence, they contained significant ex officio and nominated ma-jorities, many of the members of whom held positions of leadership inthe colonial civil service.

3. The extensive personal powers of the Governor

Despite his responsibility to the Colonial Office, Whitehall, andParliament, and the need to deal with the local, unofficial Europeancommunity, the discretionary powers of the Governor himself wereestablished early and, if anything, were strengthened in later years.

The central and dominant constitutional position of the Governorduring the colonial period is suggested by the case of Corbett Ltd. v.Floyd 3' decided in the Court of Appeal for Eastern Africa. In 1939 anEmergency Powers Order in Council had been passed to provide forthe administration of Kenya during wartime. On October 20, 1952, aspart of the commencement of the Emergency, 4 section 6 of theseEmergency Powers was applied to the Colony and, for certain pur-poses, the legislative powers of the Governor became exactly co-extensive with those of the Legislative Council. The question thenarose as to whether or not the Governor, like the Legislature, couldlegislate retrospectively. In discussing the appeal, Briggs, V-P, foundthe enabling Order in Council legitimate and, therefore, the Governorempowered accordingly. In his words:

[I]t has never in twenty years been suggested that the Order in Coun-cil was itself ultra vires, and although since the end of the warmeasures taken under it have been criticized as dictatorial, undemo-

83[1958] E.A.C.A. 389.34The "Emergency," of course, was the rebellion of certain African, predominant-

ly Kikuyu, factions popularly referred to as "Mau Mau."

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cratic and destructive of liberty, it has never, so far as we are aware,been suggested that such measures were incompetent."

In Corbett neither the Court of Appeal for Eastern Africa nor the

Supreme Court of Kenya could find statutory, constitutional, natural

justice or jurisprudential reasons for inhibiting the Governor of Kenya.The point here is not that the courts wavered in their constitu-

tional duty in the face of an overwhelming executive challenge. To the

contrary, Corbett illustrates the lack of any active constitutional role at

all for the courts in the limitation of executive authority in colonial

East Africa.3 6

4. The nature of the inherited English administrative law

It may be argued that the English law bequeathed to the East

Africans affected the future role of the courts in the independent con-

stitutional systems of Kenya, Tanzania and Uganda because that law

was peculiarly weak in the area of administrative law. Despite the use

of the prerogative writs, in Britain the courts tend to defer, by defini-

tion and custom, to the statutory and administrative acts of Parliament

and the civil service, respectively. There is neither a Constitutional

Court (nor, of course, written constitutional prescriptions to invoke),as

in the Federal Republic of Germany nor administrative Conseil d'Etat

as in France to resolve constitutional or administrative grievances

against the executive in a judicial or quasi-judicial forum. In the

fourth edition of The English Legal System, Radcliffe and Cross

describe the situation in England this way:

With us the position in this field [i. e. administrative law] is mostunsatisfactory. . . . [T]he new powers conferred on the executive bystatute to enable it to administer the services provided by the'Welfare State' have largely escaped judicial control. It is easy to bewise after the event and looking back one may say that the Courtshad themselves to blame. If when the activities of the state began to

"f[1958] E.A.C.A. at 392.8 Part of the predominance of the colonial administration was based upon the

lack of any constitutional authority for the courts to review administrative acts anddecisions. Judges could use only the prerogative writs relied upon in such situations inEngland. The Uganda High Court case of Ex Parte E. Province Bus Co. (1945) Ltd. v.Road Transp. Appeal Tribunal, [1959] E.A.C.A. 449 demonstrates the practicallimitations of judicial relief in such situations. For a review of administrative law inKenya, see McAuslan, Administrative Law in Kenya-A General Survey, 1966 EASTAFR. L. TODAY 23, 55-65.

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increase at the end of the last and the beginning of this century thejudges had extended the scope of the prerogative writs and adopted aless literal approach to the construction of statutes and statutory in-struments they might well have been able to establish an effectivecontrol over administrative decisions and to build up a body of ad-ministrative law. In fact, however, they did not realise what was hap-pening until it was too late. . . . Indeed sometimes, especially in thewar years, they have shown an almost servile deference to the claimsof the executive. . . . [I]t remains true to say that over a very widefield the executive is a law unto itself.3 7

The point here is that what is at its worst something of a judicial

blindspot or incapacity in England may be a considerable congenitalweakness in independent East Africa, where the political andcustomary constraints on executive power existing in England are not

often present.

5. The nationality of the colonial bench

Prior to independence the High Court judges in Kenya, Tangan-

yika and Uganda were almost invariably European; they tended to comefrom either England, Ireland or the Dominions. After independence

black judges trained in London were gradually appointed to the bench,

coming first from the West Indies, then West Africa, and only in the mid-

dle and late 1960's from East Africa itself.

The race and social background of the members of the High Court

(the only territorial court with jurisdiction in constitutional matters),

therefore could have been a factor in the consideration by nationalist

leaders of that institution's role in government after independence.3 9

11G. RADCLIFFE & G. CROSS, THE ENGLISH LEGAL SYSTEM 403-04 (4th ed. 1964).

They expand upon this view at 406-07. The use of the prerogative writs is discussedhere regarding English law, and the McAuslan article, supra note 36 examines theiruse in the administrative law in Kenya. McAuslan's discussion of Singh v. MunicipalCouncil of Nairobi, [1946] 22 (1) K.L.R. 8, and Kenya Aluminum and Indus. WorksLtd. v. Minister for Agr., (1961) E.A.L.R. 248, McAuslan, supra note 36 at 55-58, isespecially interesting. In a later article, McAuslan emphasizes the strength andsignificance of the administration: McAuslan, supra note 11, at 6.

"Constitutional cases may be heard in a subordinate court, but appeal lies ofright to the High Court. This was a standard feature of preindependence constitutions.See JUDICIAL AND LEGAL SYSTEMS IN AFRICA, supra note 24.

"See Palley, supra note 7, at 11 n.70. It must be remembered that as the Ex-ecutive Council, the administration, and the Legislative Council were graduallyAfricanized during the latter stages of the colonial period, the judiciary remained,

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6. The association of the judiciary with English precedentand procedure

The national courts in East Africa have been engaged, since theirestablishment, in applying received English and Indian law to EastAfricans of diverse ethnic backgrounds. This was their assigned roleduring the colonial period when their public policy responsibilitieswere minimal, and both the bar and the litigants before them wereusually of European or Asian nationality. But in modem Kenya, Tan-zania and Uganda, on the other hand-all with both written constitu-tions that demand interpretation and new institutions of governmentunregulated by custom-courts that continue to be strictly bound byEnglish precedents and procedures may never assume a credible, effec-tive and secure place in a national constitutional system. Here oneconfronts the view expressed by Professor Charles Black and othersthat the peculiar anthropology of English public law may simply nothave been able to provide a viable example for the judiciary in a newnation whose national government is both based on a written constitu-tional instrument and organized according to a separation of powersphilosophy.'

0

7. Lack of security of judicial tenure"1

Before 1958, the tenure of a colonial judge was as stated in Terrellv. Secretary of State for the Colonies,' 2 i.e., "at the pleasure of theCrown: the Act of Settlement does not apply to them.' 43 Orders inCouncil of 1958 afforded the colonial judiciary in Kenya and Uganda"a strict legal security of tenure of office on more precise terms thantheir brethren on the bench of England."" Rather than providing an

even after independence, the preserve of highly professional and, it could be argued,socially isolated Europeans.

40Conversations with Professor Black, Yale Law School, (April, 1976). Seegenerally G. SAWYERR & J. HILLER, THE DOCTRINE OF PRECEDENT IN THE COURT OF

APPEAL FOR EAST AFRICA (1971), reviewed by 21 INT'L & COMP. L.Q. 200 (1972)."1The constitutional provisions strengthening judicial tenure were Kenya

(Constitution) Order in Council, 1958, S.I. 1958, No. 600, § 61; Uganda (Amend.)Order in Council, 1958, § 2; and later, Tanganyika Order in Council, 1960, S.I. 1960,No. 1373, § 6.

"1[1953] 2 Q.B. 482."Read, Constitutions On the Move, 3 J. AFR. L. 39 (1959). See Seidman, -

Judicial Review and Fundamental Freedoms in Anglophonic Independent Africa, 35OHIO ST. L.J. 820, 824 (1974).

""Read, supra note 43, at 41.

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admirable example for East Africa's future political leaders of the im-portance of an independent judiciary, this change, coming only a fewyears before independence, may have inspired only cynicism. And, asProfessor Seidman has pointed out, "When the independence African

Constitutions created judicial independence, they went far beyond thecolonial position, and even beyond the English sytem."4s

The above points have been considered to illustrate some of the

difficulties facing East African courts at independence, when, for thefirst time, they assumed jurisdiction over the interpretation of a written

constitution and were given authority to uphold constitutional limita-tions upon the exercise of government power.

III. THE INDEPENDENCE PERIOD

As independence inevitably approached, constitutional conventions

held in London, with increasing African and Asian participation, pro-

duced a series of constitutions, and the outlines were drawn for"Westminster Model" parliamentary rule in each territory. Politicalparties began to crystallize around men or issues. Coalitions among in-digenous politicians blossomed instinctively. Debate over the institu-tional distribution of authority began but never flourished; perhaps themomentum for independence in almost any form inhibited discussionof such a complex and potentially divisive problem. The paradoxicalnature of the role prescribed for the constitution, and the nationalcourts whose responsibility it was to interpret and uphold it, wasdescribed in an earlier section. Here it might just be emphasized that"[t]he Constitution, which during the colonial period has never been adeterminant of power relationship [sic], suddenly becomes the centre

of all controversies .... There is a tendency to view all political issuesas problems for constitutional settlement.""

Various devices were used to dispense and inhibit governmental

"Seidman, supra note 43.46Ghai, supra note 7, at 410. For a lucid expansion of this, see Palley, supra note 7,

at 20. For an explanation of the "dissonance" between the liberal East African in-

dependence constitutions and the "autocratic administrative structure" which the

Africans inherited at independence, see McAuslan, supra note 11, at 8-9. There were,of course, attempts made during the colonial period to inhibit administration policy byreference to earlier Agreements or Orders in Council. These were normally denied. SeeSobhuza II v. Miller, [1926] A.C. 518; Nyali Ltd. v. Attorney-General, (2) [19561 1Q.B. 1, especially Denning, L.J., at 15; Daudi Ndibarema v. Enganzi of Ankole,[1959] E.A.L.R. 552 per Sheridan, J. in the High Court of Uganda, appealed [1960]E.A.C.A. 47.

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power in "entrenched" constitutions:' 7 Federalism and fundamentalhuman rights in Uganda, regionalism and fundamental human rightsprovisions in Kenya, and a generally restrictive independence constitu-tion in Tanganyika.

To the extent that constitutional disagreements influenced the im-mediate political positions of persons or groups involved in thenegotiating process they were pursued. But the African participantsseem to have accommodated themselves to the wishes of the ColonialOffice, and in the end they accepted independence constitutions whichgreatly limited the authority of the national government generally andthe executive in particular. In the words of Yash Ghai:

It follows from the compromise nature of the Constitution that itprovides for a weak form of government. Indeed all [three of ] theseconstitutions show an amazing distrust of power; while the whole co-lonial edifice was built on power, the nationalist leaders are expectedto carry on government on the basis of new and fragile institutions."

The independence constitutions, then, as McAuslan has said, in-troduced certain political/constitutional values to Kenya, Tanzaniaand Uganda which had not existed there before in any institutionalform.' 9 Those values, of course, were, liberal, democratic, proceduraland Western. But the circumstances of nationhood raised new andpossibly unforeseen problems of constitutional governance, and there-fore applied new pressures upon the supposed protectors of those con-stitutions, the courts. In each country the national courts seem to haveplayed a slightly different role in meeting these problems andpressures.

A. Kenya

Even before the adoption of the independence constitution in late1963, constitutional developments in Kenya were beginning to establisha central role for the national courts in that country's public life. In1960, based on decisions made at the Lancaster House Conference,

41"Entrenched" is used here to mean that, de minimus, the legislative re-quirements for constitutional amendment are more extensive than for the enactment ofordinary statutes. See, e.g., the Tanganyika (Constitution) Order in Council, 1961,S.I. 1961, No. 2274, Schedule II, § 30; the Uganda (Independence) Order in Council1962, S.I. 1962, No. 2175, Schedule I, § 5. In each nation these requirements werereduced in subsequent constitutions.

48Ghai, supra note 7, at 412-13.41McAuslan, supra note 11, at 7.

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and at the same time that a new Legislative Council was established,an extensive fundamental rights provision was introduced as a scheduleto the Kenya (Constitution) Order in Council of 1958.50 In 1962 anOrder in Council provided for appeals to lie to Her Majesty in Councildirect from the Supreme Court of Kenya in matters involving the inter-pretation of the Kenya Constitution. (From other decisions there con-tinued to be an appeal to the Court of Appeal for Eastern Africa.) InApril, 1963 a self-government constitution5' became law, which provid-ed the decentralization of authority desired by Kenya's racial minoritiesand by the Kenya African Democratic Union (KADU), (the main op-position party to the dominant Kenya African National Union(KANU)). A lengthy, complicated independence constitution followedin December of the same year. The Supreme Court of Kenya wasauthorized to interpret and uphold its provisions, which included anelaborate, justiciable bill of rights.

The constitutional position of the judiciary at independence wasclearly defined and potentially an important one within the separationof powers framework of the independence constitution. The ChiefJustice was to be appointed by the Governor-General (retained asrepresentative of the head of state, the British sovereign), acting in ac-cordance with the advice of the Prime Minister (Jomo Kenyatta), withthe proviso that the latter obtain the concurrence of the Presidents ofat least four Regional Assemblies. The puisne judges were to be ap-pointed by the Governor-General acting in accordance with the adviceof the Judicial Service Commission.52 Judicial tenure was secure-age,inability to perform, or misbehavior being the only grounds forremoval other than through an elaborate referral process involving arecommendation for removal by the Judicial Committee of the PrivyCouncil."3 Questions involving the interpretation of the Constitutionwere allowed immediate reference to the Supreme Court, 54 which inthose circumstances was to be composed of an uneven number ofjudges, being not less than three. The independence constitution ex-cluded the Court of Appeal for Eastern Africa from jurisdiction incases involving interpretation of the Kenya Constitution or contraven-

"The Kenya (Constitution) (Amend. No. 2) Order in Council, 1960, S.I. 1960,No. 2201, § 15.

"The Kenya (Constitution) Order in Council, 1963, S.I. 1963, No. 1791.52The Kenya (Independence) Order in Council, 1963, S.I. 1963, No. 1968, § 172."Id. at § 172."Id. at § 175(1).

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tion of any of its human rights provisions.5 5 Appellate jurisdiction in

these matters was explicitly extended as of right to the Judicial Com-

mittee of the Privy Council."6

At independence, then, the structural position of the national

courts was strong. Although the republican constitution of 1964 and

the re-organization and restatement constitution passed in 1969 gavemore control over the appointment and removal of judges to a

strengthened President, there remained extensive provisions for funda-mental human rights. And the High Court (formerly the Supreme

Court) retained jurisdiction over the interpretation of the constitution

and the enforcement of the protective human rights provisions.5 7 To

an outside observer, the judiciary still seemed to occupy an important

position in the national government of the country. In practice,however, this was not the case. The consensus among the most know-

ledgeable commentators seems quite clearly to be that the judiciary

and the fundamental rights that it was constitutionally authorized toprotect have had very little impact upon government and administra-

tion in independent Kenya. 8 The High Court is simply not an impor-

tant factor in the evolution of public policy in the community. Why?To answer this, one must understand the strength of the executive ad-

ministration in Kenya and the consistent emulation of English judicial

and legal culture at all levels of the legal profession.First, it must be remembered that the independence constitution

which established the judiciary's responsibility for the interpretation of

the constitution and enforcement of human rights was seen by theKANU government almost from the outset as an unfortunate expe-

dient. That constitution's basic characteristic was regionalism and"[t]he Government saw the constitution as presenting a challenge to it,

for which the Opposition was basically responsible. To conform meant

to cease to exercise powers which had hitherto been considerednecessary in Kenya to tackle problems which remained in existencenotwithstanding independence. . . .,,9 Prior to independence, public

order, not human rights and judicially enforced limitations on ex-

5 Id. at § 176(3)."Id. at § 180.57The Constitution of Kenya (Kenya Gazette Supp. No. 27) (Act No. 3), 18 April

1969, at §§ 67 and 84, respectively.

SThis is the ultimate conclusion, and a pervasive theme, of Y. GHAI & J.

McAUSLAN, supra note 14, especially ch. 11."gMcAuslan, supra note 11, at 17. See generally H. BIENEN, KENYA: THE

'POLITICS OF PARTICIPATION AND CONTROL (1974); C. GERTZEL, THE POLITICS OF IN-

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ecutive authority, had been the primary concern of the colonial ad-ministration.6 0 Border problems with Somalia increased this concernafter independence. The government of Jomo Kenyatta felt constitu-tionally ill-equipped for the difficult job of nation-building andeconomic developments that it faced. Consequently, the constitutionalchanges of the first two years after independence sought to remedy theweaknesses of the independence constitution. These changes have beensummarized as having the effect of:

-Increasing the powers of the executive;-Decreasing the powers or status of the institutions whose function

it was to control the executive; and-Weakening the legal safeguards on the exercise of power by the

executive. 61

At the same time that the executive branch and administrationwere being strengthened around the office of the President62 (Arepublican constitution was adopted in December 1964 which con-solidated the head of state and head of government functions in JomoKenyatta.) and the Regional Assemblies established by the indepen-dence ("Majimbo") constitution were abolished, Kenya was becoming ade facto one party state. KANU absorbed the opposition in 1964 in awave of national unity and became luxuriously inactive on the locallevel after that time.6 s By 1966, KANU party officials were concernedabout the rapid atrophy of local party organizations. In the electoraldistricts during this period, the members of the civil service began toexert more influence than elected officials. When KANU split in thespring of 1966, the government retaliated with a constitutional amend-ment (No. 5) forcing any member of Parliament (MP) who changedhis party to stand in a by-election.6 4 An attempt to seek judicial relief

DEPENDENT KENYA (1970); and C. ROSBERG & J. NOTTINGHAM, THE MYTH OF MAU

MAU (1966)."See, e.g., Corbett Ltd. v. Floyd, [1958] E.A.C.A. 389 discussed supra. This

preoccupation with stability and order may have been more pronounced in Kenya thanin either Tanganyika or Uganda.

"Y. GHAI & J. McAUSLAN, supra note 14, at 511."Id. at ch. 6. Compare the powers accorded to the president in ch. II, pt. I and

to the executive branch generally in ch. II, pts. 1, 2, and 3 of the KENYA CONST. of1969 with the far less substantial powers accorded to the Prime Minister at in-

dependence.

61Y. GHAI & J. McAUSLAN, supra note 14, at 513; 0. ODINGA, NOT YET UHURU

269-72 (1967).64Prior to these events, the percentage of votes required in Parliament to amend

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from this amendment was initiated but never pursued or acted upon inthe courts.

Also in 1966 a constitutional amendment (No. 3)65 was passedwhich excluded from operation of the guarantees of fundamentalrights acts done while Kenya was at war or while Part III of the PublicSecurity Act was in force. Giving wide discretionary powers to the na-

tional executive, this allowed for the use of preventive detentionmeasures far beyond the intention of the independence constitution.

Its effect was to broaden the control of the administration over na-tional political life. And in addition to the political atmosphere andthe constitutional amendment process, 66 conventional statutory enact-ments extended very considerable administrative discretion to membersof the executive branch at both the ministerial and local levels.67 Insome situations judicial review of a Minister's decision was specificallyousted by the act itself. 68 And in 1969 (the same year that the new op-position party, the Kenya People's Union (KPU) was banned and itsleader, former Vice-President Oginga Odinga jailed) the LocalGovernment (Transfer of Functions) Act6 9 was passed. This statuteauthorized the president to amend, by regulation, any act of Parlia-ment so far as was necessary to transfer to the central government the

functions of certain local authorities.An anecdotal affirmation of this seemingly inexorable consolidation

of authority in the executive is seen in a newspaper account of a Na-tional Assembly debate which took place on July 20, 1973. The DailyNation of the following day reported the government's rejection of amotion by Mr. J. M. Seroney (MP, Tinderet) asking for constitutional

clarification by amendment of the right of an MP to hold politicalmeetings in his own district. Both Seroney and Mr. Mark Mwithaga,(MP, Nakuru Town), who seconded the motion, told of such meetings

the Constitution was lowered, as was that needed for the extension of emergencypowers. This particular amendment (No. 5), clearly a reaction aimed at punishing theopposition and strengthening the executive in Parliament, bypassed the StandingOrders of Parliament. Nothing similar had been suggested, of course, when KADUmembers had crossed the floor to join the government in 1964.

"Kenya Constitution (Amend. No. 3) Act, (No. 18 of 1966)."6See Okoth-Ogendo, The Politics of Constitutional Changes in Kenya Since In-

dependence, 1963-1969, 71 AFR. AFF., 9.6 See, e.g., the Development Plan and the Societies Act (No. 4 of 1968). See also

Y. GHAI & J. McAUSLAN, supra note 14, at 444-56."See, e.g., the Societies Act, supra note 67."(No. 20 of 1969).

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being repeatedly "cancelled" by the District or Provincial Commis-sioners for "security reasons."' 0 It might seem odd to an observer ofthis debate that although both MP's complained of a denial of theirconstitutional right to "freedom of expression," there does not seem tohave been any mention of seeking judicial relief.

How did the courts respond to this trend? After charting the pro-cess of increasing presidential and administrative control of Kenyanpublic life, Ghai and McAuslan comment that:

On the surface the courts' power of review of administrative ac-tion is greater under an African Government than ever it was underthe colonial authorities, and this power remains relatively un-molested. But it is not beyond the bounds of possibility that thereasons for the immensity of the court's control powers is that theyare very infrequently exercised and when they are, it is rarely in thecrucial areas-the courts' powers in other words do not really affectthe administrative process. 7'

The judicial tradition in Kenya, of course, is not much help here.Besides the obvious lack of constitutional limitations upon the colonialexecutive, the colonial judiciary accepted the ousting of its jurisdictionto review administrative acts and often demonstrated reticence in con-sidering the merits of an administrative decision in situations where itdid hear an appeal. 2 An example of the former is the 1958 case of ReMarle's Application'" in which the Kenya Supreme Court followed theEnglish precedent of Smith v. East Elloe Rural District Council'4 andheld that because section 10(5) of the Immigration Act of 1956 provid-ed that the Minister's 'decision should not be questioned in any court,and since the Minister acted in an administrative rather than a judicialcapacity, he was justified in refusing to allow the appellant to state hiscase or to know the evidence against him.

Even when they reached the merits, the colonial judiciary did littlethat would have inspired a principled adherence to fundamental rightsand the rule of law in the hearts of post-independence courts.Attorney-General v. Kathenge'5 concerned the validity of a curfeworder whose application was restricted to Africans only. The order had

7 The Daily Nation, July 21, 1973, at 4-5.1Iy. GHAI &J. McAUSLAN, supra note 14, at 303.

"2See supra note 36.13[1958] E.A.L.R. 153.71[1956] A.C. 736.71[1961] E.A.L.R. 348.

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been issued under section 10 of the Public Order Ordinance, 1950 (asamended) which provided that such orders could be applied to "everymember of any class of persons" specified therein. As has been notedelsewhere, "[w]ithout considering what might have been intended to bethe proper purposes of this phraseology, the court held that it permit-ted racial discrimination. 7 6

Certainly since independence there have been occasions when thejudiciary has exercised its authority in such a way as to enforce an in-dividual's rights against an administrative body. In Haridas Chhagan-lal v. Kericho Urban District Council" the Supreme Court ruled thatthe District Council had applied bylaws which were ultra vires forunreasonableness. In the well known cases of Madhwa v. City Councilof Nairobi78 and Devshi & Co. v. Transport Licensing Board79 thecourts did review and declare invalid for unconstitutionality acts ofpublic authorities which were found to be racially discriminatory. 80 InMuhuri v. Attorney-General' the court held that administrativemachinery established by statute for the settlement of claims for com-pensation for loss of property under the Stock and Produce Theft Actwas unconstitutional because it lacked the essentials of a court pro-cedure. Such procedures were considered to be required by Article 19of the Constitution upon any compulsory taking of property. But suchcases have been rare.82 And they may be even more rare in the future:

16Y. GHAI & J. McAUSLAN, supra note 14, at 409-10.71[1965] E.A.L.R. 370."s[1968] E.A.L.R. 406.

79[19701 E.A.L.R. 631.

"0See Y. GHAI & J. McAUSLAN, supra note 14, at 422-24 for a discussion of these

cases. Both Madhwa and Devshi were straightforward and important examples of

judicial review of administrative decisions in protection of the individual according toprovisions prohibiting discrimination against Kenya citizens. The provisions used wereKENYA CONST. of 1963, § 26 (in Madhwa), and § 82 (in Devshi). See also Re Maangi,[1968] E.A.L.R. 637. But it must be remembered that the Kenyan Constitution allowslegislation which discriminates against non-citizens. KENYA CONST. of 1963, § 82(4)(a).This has allowed the Kenya Government to move against Asian non-citizen traders ona racial basis without offending § 82 of the Constitution. See generally Y. GHAI & J.McAUSLAN, supra note 14, at ch. 11.

81(1964, unreported). See Y. GHAI & J. McAUSLAN, supra note 14, at 421; Seid-man, supra note 43, at 829.

85For an affirmation of the fundamental right to compensation in cases of com-

pulsory acquisition of property, see New Munyu Sisal Estates, Ltd. v. Attorney-Generalof Kenya, [1971] K.H.C.D. 120. An order by a chief prohibiting preaching without hispermission was held unconstitutional in Ali Bin Abubakar v. Republic, [1972]

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The Kenya Constitution now provides, through broad qualifyinglanguage, that the fundamental right to personal liberty, protection

against arbitrary search or entry, freedom of expression, of assembly

and association, freedom of movement and protection from discrimina-tion on grounds of race, etc., may be derogated from by legislation.8"

The fact of the matter is that judicial review of legislation or. ad-

ministrative action has neither occurred with any frequency, nor caused

a significant public impression in Kenya. Judicial relief from violationsof the Constitution's separation of power prescriptions is practically

unheard of. Relief for human rights violations is occasional and rarely

K.H.C.D. 72. On the right to bail, even when defendant is awaiting appeal of a con-viction for a serious crime, see Chimambhav. Republic (No. 2), [1971] E.A.L.R. 343.

On the general supremacy of the Kenyan Constitution, even in a conflict witli a provi-sion of the Treaty of the East African Community, see Okunda v. Republic, [19701

E.A.L.R. 453.8 5The qualifying language in the following text of KENYA CONST. of 1963, § 76,

the Kenyan constitutional provision protecting against arbitrary search -or entry is

representative and illustrative:76.-(1) Except with his own consent, no person shall be subjected to the

search of his person or his property or the entry by others on his premises.

(2) Nothing contained in or done under .the authority of any law shall

be held to be inconsistent with or in contravention of this section to the ex-.

tent that the law in question makes provision-

(a) that is reasonably required in the interests of defence, publicsafety, public order, public morality, public health, town and

country planning, the development and utilization of mineralresources, or the development or utilization of any other property

in such a manner as to promote the public benefit;

(b) that is reasonably required for the purpose of promoting therights or freedoms of other persons;

(c) that authorizes an officer or agent of the Government of Kenya,

or of the East African Community, or of a local government

authority, or of a body corporate established by law for public

purposes, to enter on the premises of any person in order to in-

spect those premies or anything thereon for the purpose of anytax, rate or due or in order to carry out work connected with anyproperty that is lawfully on those premises and that belongs to that

Government, Community, authority or body corporate, as the case

may be; or

(d) that authorizes, for the purpose of enforcing the judgment ororder of a court in any civil proceedings, the entry upon anypremises by order of a court,

and except so far as that provision or, as the case may be, anything done

under the authority thereof is shown not to be reasonably justifiable in a

democratic society.

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occurs in controversial or sensitive areas. Yet it has not been anyweakness in its constitutional position which has kept the High Courtof Kenya from exerting itself as an "institution of control" on the othertwo branches of* government in the country. Rather, at least in part,and as McAuslan and Ghai have argued, the answer lies in the per-vasive control of public policy by the Kenyatta administration and theattitudes of those in positions of responsibility within the legal profes-sion, the law enforcement establishment and the judiciary. In theirview:

-The legal profession has not shown any appreciation of the possi-bilities of challenging the validity of laws and their administration;

-Individuals and political parties are seldom aware of the extent oftheir rights;

-No provisions exist for legal aid; and

-The courts lack experience in deciding litigation of this kind, andin any event are too ready to accept the arguments of the Execu-tive.8

4

As stated above, in Kenya the constitutional structure exists for anactive judicial role in the constitutional life of the country; however,the inclination to exercise the authority inherent in its constitutionalcharter seems to have not been present. In Kenya, one is forced toconclude that despite the adherence to formal constitutional ap-pearances, practical executive authoritarianism is the reality ofpolitical life.

B. Tanzania8 5

Whereas in examining the role (or non-role) of the national courtsin the government and administration of public policy of Kenya one is,more than anything else, struck by the stark contrast between constitu-tional appearances and reality, even a cursory look at Tanzania sug-

s4y. GHAI & J. McAUSLAN, supra note 14, at 455 & chs. 11, 13.8 As mentioned at the outset, this discussion of the role of the national judiciary

in Tanzania will be without reference to Zanzibar despite the ratification on April 26,1964 of Articles of Union between those islands and Tanganyika. One reason is thatthe administration of justice is not an area of government which the Articles reservedfor the United Republic. There is still a High Court in Zanzibar theoretically co-equalto the High Court of Tanzania, which serves the mainland only. Both McAuslan,supra note 11, at 11, and H. MORRIS &J. READ, supra note 14, at ch. 9, refer to theunusual constitutional and judicial situation in Zanzibar.

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gests that something quite different is happening. As two commen-tators have suggested upon compiling and reviewing the speeches andwritings of Mr. Justice Telford Georges,16 "one discerns an attempt toforge a completely new relationship between the Bench, Bar, Societyand Government-a relationship of inter-dependence." 81

An understanding of the role of the judiciary in the constitutionalstructure of Tanzania requires some knowledge of the unusually tran-quil pre-independence political atmosphere8" in the territory, a realiza-tion of the great impact that Julius Nyerere's personality andphilosophy have had on the country, and the political/ideologicalvalues upon which post-independence Tanzanian society is based.

Tanganyika was the first East African nation to achieve indepen-dence, doing so on December 9, 1961.89 By that time the TanganyikaAfrican National Union (TANU) had swept every election and itsleader, Nyerere, had gained the respect and support of nearly all theterritory's many ethnic and racial groups. Prior to independence thecolonial administration in Tanganyika had fewer local political fac-tions, either indigenous or immigrant, to contend with than did theadministrations of Uganda and Kenya. The Indirect Rule Systemestablished by Governor Cameron in the 1920's ran relatively smoothly.Though the administration's control over the local judiciary was quitecomplete,' 0 the Resident Magistrates and High Court judges were more

"Chief Justice of the United Republic of Tanzania from 1965 to 1971.81LAW AND ITS ADMINISTRATION IN A ONE PARTY STATE: SELECTED SPEECHES OF

TELFORD GEORGES 4 (James & Kassam eds. Nairobi 1973)."Independence came quickly and with relatively little British apprehension of its

arrival for several reasons: Tanganyika was the poorest economically of the East

African territories; its European settler population was small and relatively apolitical;its ethnic composition was so diverse that special constitutional protection for recognizedminorities was considered much less necessary than for either Kenya or Uganda;Tanganyika was administered as a U.N. trust territory and therefore not only invoked

greater international interest in her independence, but also did not represent the same

national loss to Britain as did the other two territories; and, perhaps most importantly,Julius Nyerere led the indigenous African political forces in a manner reassuring to theBritish colonial administration. See generally B. CHIDZERO, TANGANYIKA AND INTER-NATIONAL TRUSTEESHIP (1961); H. BIENEN, TANZANIA: PARTY TRANSFORMATION AND

ECONOMIC DEVELOPMENT (rev. ed. 1970)."The Tanganyika (Constitution) Order in Council, 1961 S.I. 1961, No. 2274.

The Second Schedule is the independence constitution.

"°See generally H. MORRIS & J. READ, supra note 14, at chs. 1, 5. See alsoGeorges, The Courts in the Tanzania One Party State, in LAW AND ITS ADMINISTRA-TION IN A ONE PARTY STATE: SELECTED SPEECHES OF TELFORD GEORGES, supra note

87, at 10.

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independent of the administration. And in 1960 judges of the HighCourt of Tanganyika were granted significantly greater security oftenure."

At independence the appointment and removal provisions of theindependence constitution relating to judges of the High Court weremuch like those in Kenya's 1963 constitutions." Appeals lay to thePrivy Council and, in certain cases,. to the Court of Appeal for EasternAfrica. The High Court of Tanganyika had jurisdiction over the inter-pretation of Tanganyika's constitution. But for the purposes of thisessay, and as an early indication of the future role of the judiciary inTanganyika, the most significant aspect of the independence constitu-tion was its lack of any justiciable fundamental human rights provi-sions. it is arguable that this immediately limited the potential for thecourts to be a significant source of protection for an individual againstexcessive executive authority or discriminatory legislative enactment.But it also limited some of the potential for tension between the ex-ecutive and the judiciary. The lack of a bill of rights will be discussedfurther in the context of what became Tanzania's unique approach tothe problem of the role of the judiciary in a developing state.

Although Tanganyika's independence constitution was less restric-tive in terms of limitations upon the executive branch than those ofKenya. and Uganda,93 the decision was taken within two months thatmajor changes were necessary. Prime Minister Nyerere resigned fromoffice in order to work for national unity through TANU. Study of arepublican constitution began shortly thereafter. Why this almost im-mediate move to revise the independence constitution? McAuslan haswritten that the three maaor reasons were a basic dissatisfaction with:

-The seemingly artificial and, to many Africans, incomprehensibleseparation .:of functions between Head of State and Head ofGovernment;

"See supra notes 42-44."But there was -an exception that in Tanganyika there were no regional

-presidents who had to approve of the appointment of a Chief Justice. See theTanganyika (Constitution) Order in Council, 1961 S.I. 1961, No. 2274, § 59(1). In thecase of puisne judges the position was the same in all three independence constitutions:appointment by the Head of State (the Governor-General) in Kenya and Tanganyika,the President in Uganda, in accordance with the advice of the Judicial Service Com-mission. This appointment process was opposed by all three elected Heads of Govern-ment; its alteration was among the first constitutional adjustments made after in-dependence.

. 5McAuslan, The Republican Constitution of Tanganyika, 13 INT'L & COMP.L.Q. 502, 504 (1964).

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-The absence of a clear constitutional role for the party (TANU);and

-The absence of effective political control over the civil service. 94

On December 9, 1962, Tanganyika became a republic. JuliusNyerere, having both observed the administrative efficiency of Tangan-yika's colonial system of indirect rule and experienced the problems oforganizing TANU in the 1950's, felt that "the needs of economicdevelopment overrode the claims of undiluted liberal democracy. Astrong centralised executive was required to urge, if necessary, to com-pel the country forward and this made a change from the diffused andconfusing Westminster model imperative."'95

In the early change to a republican constitution Nyerere's philoso-phy of government began to crystallize; and it is in the context of thisphilosophy that the constitutional role of Tanzania's judiciary must bestudied. The appointment, security of tenure, or jurisdiction provisionsof any of the three different constitutions that the country has hadsince independence hold few secrets as to the actual position of the na-tional courts in the separation of powers system of independent Tan-zania. One would benefit more from studying the Arusha Declarationof 1967 and its plan of an egalitarian socialist society for Tanzania.

Nyerere's particular views of constitutions and courts themselves areinteresting. Constitutions seem to have been regarded as symbols ofpolitical legitimacy or "acts of national rededication,"' 96 but not as bind-ing bodies of rules whose letter and spirit prescribe all legitimate actsof government. Ghai has said of Nyerere that:

[H]e does not regard the constitution as solving all the nation's prob-lems or defining all power relationships. He has argued that in theabsence of an appropriate national ethic, the Constitution can be oflittle avail; therefore, there are and have to be forces outside theConstitution which determine the way the power given by the Con-stitution is to be used. This concept of power outside the Constitutionis a key to the understanding of Tanzania's constitutional ex-periments. .... 9.

And on the persistent problem of balancing the need for public orderwith the desire for personal freedom, Nyerere has said that:

'4 McAuslan, supra note 11.9Id. at 18.96McAuslan, supra note 7, at 154.9"Ghai, supra note 7, at 419.

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The principles of individual freedom and the rule of law require thatno person is arrested and held without quickly being convicted of il-legal actions. But we know that we cannot always get the proof neces-sary for conviction, especially in cases of subversion, corruption andintrigue. Yet if we then adhere to the principles of the rule of law,without any exception, our young democracy-and these principlesthemselves-may be the sacrifice." 8

Yet despite the absence of justiciable fundamental rights provisionsin either the independence constitution, the republican constitution, orthe interim constitution of Tanzania devised in 1965 after the Unionwith Zanzibar, and Nyerere's general view of constitutions, Tanzaniahas consistently stressed the importance of the rule of law and the in-dependence of the judiciary. A month prior to independence, JuliusNyerere stated, "Our judiciary at every level must be independent ofthe executive arm of the State." 99 And in January 1964, when thePresidential Commission on the Establishment of a Democratic One-Party State received its presidential directives and guidelines, the sec-ond of six points specifically placed beyond the competence of theCommission to reconsider was that the rule of law and the in-dependence of the judiciary should be preserved.

This may have been either contradiction or cynicism, or perhapsboth; but it is equally arguable that it is neither. For the operativejudicial philosophy borne of this seeming conflict is that Tanzania'sjudiciary, finally fully integrated and separated from the executive ad-ministration by the Magistrate's Court Act of 1963,100 is both indepen-dent of the executive and excluded from decision-making in importantareas of public policy. In fact, seen in this light, the first fifteen yearsof Tanzanian independence indicate the goal of establishing an in-dependent judiciary, free to settle disputes without fear of directpolitical pressure or retribution, and with an increasingly clear iden-tification with the societal goals of TANU, but with a limited ability toreview the acts of public policy makers, whether those acts be legis-lative or executive.

The tone of this constitutional role was first enunciated in Tangan-yika in the "Proposals of the Tanganyika Government for a Republic."

9 J. NYERERE, FREEDOM AND UNITY 6 (1966). These remarks were made at the

first formal ceremony of University College, Dar es Salaam, Tanzania (then Tangan-yika) on October 25, 1961.

'9 J. NYERERE, supra note 98, at 131."(No. 55 of 1963). See Georges, supra note 90, at 15-26.

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The proposals stated, "[T]he rule of law is best preserved, not by for-mal guarantee in a Bill of Rights which invite conflict between the ex-ecutive and the judiciary, but by independent judges administeringjustice free from political pressure."' 01 (emphasis added)

This point is made again and amplified in the 1965 Report of thePresidential Commission on the Establishment of a Democratic One-Party State. 0 There a justiciable bill of rights and the judicial reviewthat it would require were rejected for the following reasons (presentedin various states of paraphrase):

1. The reduction of ethical propositions about government intoprint may allow the letter of the law to replace its spirit.

2. A bill of rights which limits in advance of actual events themeasures a government may take to protect itself from subversionmay be a luxury that new states cannot afford.

3. A government could so hedge such statements of rights withqualifications that it provides little protection for the individualand induces cynicism about the whole process of government.

4. A bill of rights could invite conflict between the judiciary andthe executive and legislature.

5. Involvement of the judiciary in political controversy would makemore difficult the impartial administration of the law.

6. At independence the judiciary in Tanganyika was almost entirelyexpatriate.

7. Tanganyika's plans for development will necessitate revolutionarychanges in the social structure. Decisions concerning the extentto which individual rights must give way to the wider considera-tions of social progress are not properly judicial decisions.' °0

An avoidance of judicial involvement in politically sensitive issues,however, is only one side of Tanzania's particular approach to the roleof the courts. While "independent" the Tanzanian judiciary is not"separate" from the predominate political philosophy and institutionsof the nation. Chief Justice Telford Georges, the first man of Africandescent to sit as the highest judicial officer in Tanzania, has writtenabout the problem of the role of the judiciary in a one-party state suchas Tanzania. He has admitted that the result of the combination of

'01Proposals of the Tanganyika Government for a Republic (gov't paper, May 31,1962).

'0 tThis commission was chaired by Vice-President Rashidi Kawawa. See commentsby Mwendwa, supra note 12, at 18.

10'See the 1965 Report of the Presidential Commission on the Establishment of aDemocratic One-Party State ch. 21 (Gov't Printer, Dar es Salaam 1965).

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the colonial legacy, the expatriate bench, a one-party policy, and thegovernment's plans for nation-building was:

[A] growing concern over what the term "independence of thejudiciary" meant and what the result of such independence would bein a society where the party was so powerful. In that regard somerethinking is necessary. The concept of the Judge as the neutral,belonging to no party in the multi-party democracy, can have nomeaning here-where there is one party. If he stands aloof seemingto play the a-political role which is supposed to be his, his motiveswill doubtlessly be suspected. A new way must be found.10'

The "new way," it is submitted, is a kind of Tanzanian "strict con-struction" approach to the constitutional role of the national courts,allowing for both judicial independence and the integration of thejudiciary into the political mainstream of the party and nation.

By "strict construction" is meant that although certain areas ofjudicial review of official acts remain, 05 the practical reality of judicial

'"4Georges, supra note 90, at 27."'The TANZANIA INTERIM CONST. of 1965, § 64 provides that an appeal shall lie

as of right direct to a full bench of the High Court from final decisions of any court orjudge in Tanzania on questions as to the interpretation of the Constitution. The deci-sion of the full bench is to be final. According to Section 36 of the Constitution, anyquestion regarding membership in the National Assembly is part of the exclusivejurisdiction of the High Court. And while the National Executive Committee of TANUhas been accorded the same powers and privileges, e.g., to take evidence, as has theNational Assembly, (National Executive Committee (Powers and Privileges) Act 1965(No. 49 of 1965)), contempts of the Committee's authority are punishable only throughthe courts. There have been some, though relatively few, constitutional and ad-ministrative law cases in which official authority has been challenged. For cases arisingout of the 1965 National Assembly elections, see Re K. A. Thabiti, [1967] E.A.L.R.772; Ayo v. Simeon, [1967] E.A.L.R. 229, in both of which election results weredeclared void; Bura v. Sarwatt, [1967] E.A.L.R. 234; Mbowe v. Eliufoo, [1967]E.A.L.R. 240. See also Isango v. Republic, [1968] E.A.L.R. 140, in which Georges,C.J. allowed the appeal of a local TANU official from a conviction for corruption;Kionywaki v. Republic, [1968] E.A.L.R. 195, in which the petition alleging a wrongfularrest was dismissed; and In the Matter of a Petition by Habel Kasenha, [1967]E.A.L.R. 455, in which the court acknowledged the ouster of its jurisdiction by theLocal Government (Elections) Act, 1966, § 78(2). On the other hand, the High Courthas demonstrated its independence by holding that derogatory remarks about the Vice-President did not constitute the crime of using obscene language likely to cause abreach of the peace. Republic v. Kunanga, [1972] H.C.D. (Tanz.) 181. And therehave been a series of cases upholding the right to bail. Republic v. Ally, [1972]H.C.D. (Tans.) 119; Republic v. Olale, [1972] H.C.D. (Tanz.) 198; Republic v. AhmedPanju, [1972] H.C.D. (Tans.) 161; and Jaffer v. Republic, [1972] H.C.D. (Tans.) 92.

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review, in its traditional sense, exists even less in Tanzania than inKenya or Uganda. As Chief Justice Georges admitted:

It may well be that the High Court of Tanzania has no such power.• ..It seems unlikely that the courts would seek such a role today-though it could be urged that they could legitimately pronounceagainst any law which patently cut across any of the aims for whichthe Constitution has been established- e.g. the existence of free andimpartial courts. The argument would be fascinating. 106

Georges believed that a colonially instituted legal system could realizethe new ideals of socialism without fundamental structural changes.He also believed, however, that the judiciary could neither remainapart from the process of nation building0 7 nor fail to identify withparty politics. 0 8 His thesis about the role of a judiciary in a developingstate has been summarized as follows: "An independent judiciary canbetter be realised when the personnel involved are equipped with theability to base their decisions on predetermined normative premises."' 0 9

And yet Georges was opposed to a deprofessionalization of the legaland judicial functions, and he supported a separation of powers con-stitution." 0 But perhaps Georges' greatest contribution, and the onethat differs most from the highly Anglicized, formal and urban natureof bar and bench in neighboring Kenya, was that:

He took every opportunity, whilst on circuit, to visit remote ruralareas and educate the people on the role of the judiciary and howbest they could help in the administration of justice. So as to makethe courts as informal a place as the traditional baraza he dispensedwith the wearing of wigs."'

A final factor of importance in considering the nature of the Tan-zanian judiciary is the introduction, in 1966, of an administrative om-

But compared to Kenya and Uganda there are very few Tanzanian cases reportedwhich involve constitutional or even administrative law issues.

'"OGeorges, supra note 90, at 26.'O°See supra note 87, at 2 for a discussion of the Tanzanian case of Iddi Omari v.

Abdullah, [1965] L.C.C.A. No. 83 of 1965.'"8Branches of TANU have been opened in the High Court as in many other

government departments and parastatal organizations. See, Georges, supra note 90, at58 n.8.

'0 Supra note 87, at 6.11Old.1'd.

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budsman: the Permanent Commission of Enquiry (PCE)." 21 The threemembers of the Commission are appointed by the president for non-

renewable two-year terms. They are to travel the countryside hearingcomplaints against members of the administration and non-statutory aswell as statutory and governmental bodies. Their investigations are notto be barred by statutory finality clauses (as the courts often are), in-

formation may be compelled, and they may conduct their hearings inprivate. A hearing need not be extended to any person accused ofmisconduct except those on whom the Commission comments adverselyin one of their annual, confidential reports to the president. Therepofts are addressed to the president only, and it is he, not the PCE,

who then prepares a report for the National Assembly.

Despite the central control of the president and the lack of publicknowledge concerning the resolution of those complaints found to bejustified," s the PCE does provide a forum in which an individual, in-

jured by the wrongful or capricious exercise of official authority, canseek protection and/or compensation. The PCE provides, in a Tanza-nian fashion, a form of review of administrative action which, asMcAuslan has said, is more relevant and comprehensible to Tanza-

nians "than the High Court with its paraphernalia of prerogative writsand orders."' 1

In the first three years of its operation there were forty-eight com-plaints filed against Regional Commissioners, seventy-five against Area

Commissioners and a considerable number against the judiciary.although judicial decisions as such are outside the Commission'sjurisdiction. Twenty of these were considered justified by the PCE." 5

Whether or not the Permanent Commission of Enquiry, withoutany executive powers of its own, will provide sufficient protection forthe individual in a state with a rapidly expanding public sector re-mains to be seen. At present, it at least remains a creative attempt atproviding a forum to which the common individual can go for a hear-ing and possibly relief when he feels that his government has not dealtwith him fairly." 6

"2See the Act to Prescribe the Procedures, Powers, and Privileges of the Perma-nent Commission of Enquiry, 1966 (No. 25 of 1966). For the extension of the PCE's

jurisdiction, see the Interim Constitution of Tanzania (Amendment) Act (No. 4 of

1966).

"'See Norton, The Tanzanian Ombudsman, 22 INT'L & COMP. L.Q. 603 (1973)."'McAuslan, supra note 7, at 170."'See Norton, supra note 113, at 624.

..Id. Norton's work explains the publicity function of the PCE's trips around the

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One sees in Tanzania, therefore, an active effort being made tofind a role for the courts and perhaps innovative systems for the ad-ministration of justice which will meet the needs of a developing, one-party socialist society which retains a constitutional and philosophicalcommitment to the rule of law. But enormous tensions remain. YashGhai has written on the inevitable but, he thinks, reconcilable conflictbetween law and ideology in socialist Tanzania.I1 7 Rude James has ex-amined the dual forces of "expediency" and "legality" in his incisiveexamination of the role of the law, lawyers and the judiciary in the im-plementation of Tanzania's social and political goals."I8 James expressedconcern over "the cavalier approach to traditional land tenure" and"the continuing and increasing infringement of the State and Partyfunctionaries in the actual decision-making process of the courts."" 9

The concepts of law, judges, and courts are in something of a state offlux in Tanzania. In the meantime, within its unambitious constitu-tional role, the judiciary appears to be operating independently. Thedynamism and uncertainty are real, probably necessary.

C. Uganda

Professor Ali Mazrui of Makerere University in Kampala hasargued that prior to 1966 a vigorous tradition of constitutionalism ex-isted in Uganda. In Mazrui's words, "For our purposes . . . we define'constitutionalism' broadly to mean a procedural approach to politics;a faith in legal solutions to political tensions; a relatively open societywith institutionalized competition for power in the polity."T20 And as"legal solutions to political tensions" necessarily involve the courts, ifMazrui's assessment is correct the role of the judiciary in Ugandashould be immediately distinguishable from that in either Kenya orTanzania. As discussed above, Tanzania has developed its own uniqueconstitutional structure and perception of the judicial role, and inKenya, despite constitutional appearances, the judiciary has little im-

countryside, the width of their jurisdiction, the "poor man's lawyer" function of theCommission, and the fact that the simple, straightforward explanations of the AnnualReports are comprehensible to most Tanzanians.

I"Ghai, Notes Toward a Theory of Law and Ideology: Tanzanian Perspectives, 13AFR. L. STUD. 31 (1976).

"'James, Implementing the Arusha Declaration-the Role of the Legal System, 3AFR. REV. 179 (1973).

"Iid. at 190.110A. MAZRUI, Violent Constitutionalism in Uganda, in VIOLENCE AND THOUGHT

147 (1969).

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pact upon public policy. But in Uganda there have been a series ofimportant constitutional cases, both before and since independence in1962, which have directly involved judges of the High Court of Ugandain the resolution of important public problems.

Why was Uganda different in this regard? The answer may lie inthe social structure and history of the country, in a colonial judicialexperience somewhat different from its neighbors, and in the institu-tional struggle for influence in independent Uganda which intensifiedduring the constitutional studies done by the Wild and Munster Com-missions in 1959 and 1961, respectively, and continued in the NationalAssembly and the country until 1966.

The existence of the traditional, autonomous kingdoms of Buganda,Ankole, Bunyoro and Toro, each with a relatively advanced politicalorganization, caused the British government to enter into separateagreements with them early in the colonial period."' Although laterdecisions in both the High Court of Uganda (Daudi Ndibarema v. TheEnganzi of Ankole)122 and the Court of Appeal for Eastern Africa(Katikiro of Buganda v. Attorney-General of Uganda)12 declared thatthese agreements could not be invoked as part of the municipal law ofUganda to limit subsequent acts of the central colonial administration,they did represent to the communities concerned a source of authorityand legitimacy separate from that of the national administration. Aninevitable pluralism was the result, followed, arguably, by a tendencyto find legal solutions to political disputes earlier than is seen in Kenyaand Tanzania. 124 These peculiar colonial arrangements were essentiallypreserved in the quasi-federal nature of the independence constitutionof Uganda.

An example of this phenomenon was the 1965 case of Attorney-General of Uganda v. The Kabaka's Government 2 involving theallocation of revenue to Buganda from the central government, ahighly political issue in the country at that time. The case is notewor-thy for two reasons. First is that an issue of such sensitivity should beleft to the decision of the courts. Second is Slade, J.'s assertion of the

12t Even the 1955 Buganda Agreement was seen there as a protection against

unilateral change on the part of the colonial administration..21[1959] E.A.L.R. 552, affd [1960] E.A.C.A. 47.

l11[1959] E.A.C.A. 382. See also Attorney-General of Uganda v. Katondwaki,

[1963] E.A.C.A. 323.114See Ghai, supra note 7, at 428-29.-11[1965] E.A.L.R. 193.

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right of the High Court to rewrite the paragraphs of the NinthSchedule to the 1962 constitution because the court would not bedeparting from the intention of the legislature in doing so.12 6 This typeof judicial initiative is not easy to find in Kenyan or Tanzanian deci-sions. A similarly activist position was assumed by Bennett, Ag., C.J.,in Jowett Lyaboga v. Bakasonga. 127 There the High Court found forthe plaintiff against six elected members of the District Council ofBusoga and a man elected as Kyabazinga of Busoga, and in so doinginvalidated the defendants' membership resolution which had alreadybeen approved by the Governor of Uganda.

An early example of professional legal interest in constitutionalmatters in Uganda was the "Petition against the Bill" (the NativeCourts Ordinance) presented to the Legislative Council by the UgandaLaw Society in April, 1932.128 The Society's first argument against theproposed subordination of the native courts to administration controlwas that the Ordinance would be unconstitutional, as the Governorcould not act as court of appeal without being in conflict with his ex-ecutive position as sovereign's representative. The Ordinance was final-ly passed despite the objections of the Law Society in 1940.

The provisions in the 1962 independence constitution relating tothe appointment, tenure and jurisdiction of the High Court weresimilar to those in the independence constitution of Kenya.129 This'constitution was long and complex because of its quasi-federal nature;it contained extensive human rights provisions which the courts wereauthorized to uphold. It allowed special status for all four kingdomsand the district of Busoga, but provided Buganda with unique, andconstitutionally entrenched, privileges. As McAuslan has suggested,this compromise constitution "can be seen as the continuation of the

1t6 Slade, J., sitting with Udo Udoma, J. and Bennett, J., elaborated as follows:[W]e are of the opinion that provided we can ascertain the intention of

the legislator from the rest of the Independence Order and Constitution, aid-ed by a consideration of the surrounding circumstances and historicalbackground, we should not hesitate to modify the language used in order togive effect to the intention. Id. at 403.11[1963] E.A.L.R. 57."'See H. MORRIs & J. R.AD, supra note 14, at 150-51. Other factors are cited

which distinguish Uganda from either Kenya or Tanganyika, e.g., longer contact withEuropeans, higher percentage of literate Africans.

"'Except, of course, that Buganda had its own High Court until it was abolishedin 1966. The relevant provisions relating to the Judicature of Uganda are §§ 83-91,UGANDA CONST. of 1967.

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conflict between Buganda and the rest of the country, the need to tryand contain that conflict, and obtain advantages by the manipulationof the constitutional rules."1 0 This constitution, but especially thenecessarily compromising attitude of the competing political factions,may have significantly encouraged an atmosphere in which the judiciarywas called upon, and felt able, to play out its constitutionally prescribedrole.

Even after the 1966 coup d'etat, in which neither the courts northe fundamental rights provisions of the independence constitution suf-fered significant apparent injury, both the judicial consideration of dif-ficult constitutional cases and an active public debate of constitutionalissues continued.' 3 '

In 1966 the High Court of Uganda. sat in judgment of thelegitimacy of its own government in the famous constitutional case ofUganda v. Commissioner of Prisons, Ex Parte Matovu. 132 The constitu-tional subtleties of this case could be the subject of an entire essay.

.Most significant for present purposes was the court's direct involvementin a highly political matter concerning both the government's powersof preventive detention under a provision of the new interim constitu-tion of April 1966 and the validity of that constitution itself. The caseresulted in a judicial decision favorable to, and relatively uncritical of,the Obote government on both counts. The opinions of Sir UdoUdoma, C.J. and Sheridan, J. are elaborate and deserve study. 3 But'despite the outcome, Ex Parte Matovu is of interest because of the cen-tral role played by the nation's highest court in the resolution of themost fundamental constitutional issue that can face any country: thelegitimacy of the constitution itself.

The point is that Matovu, despite its ruling in favor of the govern-ment, is only the best known and most interesting of a series of con-

'18 McAuslan, supra note 11, at 17.

"'After Obote's February 1966 coup d'etat an interim constitution was issued and

passed by the National Assembly in April. The permanent Constitution of 1967 wasenacted a year later. Ghai has written with regard to the 1966 coup led by Obote,supra note 7, at 430, "It is indicative of the strong roots that constitutionalism hadtaken in Uganda, that his regime soon began the search for a return to constitu-tionality."

1'[1966] E.A.L.R. 514.'"Compare Matovu with the Rhodesian case of Madzimbamuto v. Lardner-

Burke, [1968] 2 S.A.L.R. 284, [1969] 1 A.C. 645 and the Nigerian case of Lakanmi v.Attorney-General (Western State), [1970] S.C. 58, 69. There are many academic com-mentaries on these cases.

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stitutional cases decided in Uganda during the 1966-1971 period. Atthat time President Obote was expanding his own power within thegovernment and the country. Nation-building and the need for na-tional unity were used to rationalize the centralist 1967 constitutionand greater executive authority generally.' 34 The Obote government,armed with new and broad powers of preventive detention, wasbecoming increasingly sensitive to criticism and precipitated the well-known Transition magazine sedition trial in 1969. That trial occasion-ed much publicity and inspired a courageous decision against thegovernment and in support of freedom of expression and due processby Chief Magistrate M. Saied.1s1 In fact, 1969 was a key year for theObote regime: It saw the issuance of Uganda's version of the ArushaDeclaration (called the Common Man's Charter), the Transition trial,an attempt on President Obote's life in December, and the subsequentDeclaration of Emergency, which gave the executive special powers tomaintain public order.

It is difficult, if not impossible, to assess the impact that thesedevelopments had on the national courts. In some important constitu-tional (Matovu, supra) and human rights cases (G. S. Ibingira v.

Uganda'3 and Ochieng v. Uganda's ') the High Court found for theGovernment. In both of the latter, the High Court upheld pre-trialpractices which represented a substantial diminution, if not abroga-tion, of section 19 of the Uganda Constitution concerning the right topersonal liberty. And there were, as might be expected from ajudiciary still stiffened by English formalism, cases involving constitu-tional issues which were dismissed on technical grounds (e.g.,Odongkara v. Kamanda138). But there were also decisions whichreflected the brighter moments of Uganda's constitutional past and thejudiciary's ability and occasional desire to play a significant roletherein. In Muyimba v. Uganda'39 the High Court of Uganda nullified

1'4 0n the 1967 Constitution see generally Mayanja, The Government's Proposals

for a New Constitution in Uganda, 32 TRANSITION 20 (1967); Akena Adoko, The Con-stitution of the Republic of Uganda, 33 TRANSITION 10 (1967). At this time there wasbeginning to be some debate over the role of the judiciary in a developing society. SeeAli, Ideological Commitment and the Judiciary, 36 TRANSITION 47 (1968). But thedebate never attracted the attention, participation, or sophistication that somewhatsimilar discussions did in Tanzania.

"Reported in 38 TRANSITION 47 (1971).-3"[1966] E.A.L.R. 306."'[1969] E.A.L.R. 1."'.[1968] E.A.L.R. 21.13'[1969] E.A.L.R. 433.

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a criminal conviction and ordered a new trial because of a contraven-tion of sectionl5(2)(d) and (e) of the 1967 constitution concerning theright to counsel. In Shah v. Attorney-General of Uganda1'40 the High

Court found for the plaintiff against the Government, holding the lat-ter liable to the plaintiff on an obligation owed him by the defunctBuganda government and which had been assumed by the centralgovernment. The Court of Appeal for Eastern Africa upheld this judg-ment in a decision highly critical of the Uganda government. Althoughin In Re Ibrahim'4 the High Court upheld the validity of a ques-tionable detention order issued under the Emergency Powers (Deten-tion) Regulations, 1966, the court was pointedly critical of the govern-ment's use of its emergency powers in ordinary criminal cases. In WestNile District Administration v. Dritoo ' the Court of Appeal forEastern Africa affirmed a decision of the High Court of Uganda'4 3

which held the defendant administration vicariously liable for false im-prisonment by its police officers.

The process of determining the judicial role within the increasinglyauthoritarian one-party government of Milton Obote was cut short bya military "coup d'etat" on January 25, 1971. This was only one monthafter Obote had been elected to a seven-year term by the UgandaPeople's Congress. General Idi Amin Dada has been the self-proclaimedhead of state since February 2, 1971, on which date he announcedthat all executive and legislative powers would be vested in himself.Under the present regime it is hardly informative to study the in-dependence or "constitutional" role of the national courts. Certainlycases are still being litigated, '44 but the courts cannot now be expected

140[1969] E.A.L.R. 261."'1[1970] E.A.L.R. 162.

"'[1969] E.A.C.A. 324."'4See [1968] E.A.L.R. 428.1'4In at least three cases since the coup the High Court of Uganda has held

against the Government in situations of some political sensitivity. See Sengendo v.Attorney-General, Uganda, [1972] E.A.L.R. 140, affd [1972] E.A.C.A. 356, holdingthe Government responsible for the unlawful shooting of the plaintiff by soldiers(although the incident had taken place prior to the coup). See also Namwandu v.Attorney-General, Uganda, [1972] E.A.L.R. 108; Musoke v. Uganda, [1972] E.A.L.R.137, in which the High Court upheld the right to bail, even where the crime wasserious, if there was likely to be considerable delay before the trial. An ambivalentdecision (but again one concerning an incident which took place under the Obotegovernment) was Nsubuga v. Attorney-General, Uganda, [1974] E.A.L.R. 1, in whichthe High Court, although finding a Minister's Detention Order not challengeable,

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to provide a check upon the arbitrary exercise of official authority.During the tenure of the Amin regime Chief Justice Kiwanuka wasphysically removed from his courtroom by soldiers and, later, foundmurdered.

Since 1971, therefore, significant constitutional debate has ceasedin Uganda. Whether the Obote government, and the High Courtjudiciary serving thereunder, would have begun to look for new ap-proaches to the problems of law and courts in dynamic, developingsocieties (as Tanzania has), retreated into passive formalism (which hascharacterized the Kenya judiciary's participation in constitutional life),or somehow built upon its own meager but promising tradition ofpluralism and judicial activism, no one can tell. What will happenwhen constitutional government returns to Uganda is equally uncer-tain.

IV. TENTATIVE CONCLUSIONS

Summary judgments have been offered on each of the three coun-tries discussed above. No reiteration of those ideas will be attemptedhere. Most of the commentators that have looked at the problems ofconstitutions, courts and the rule of law in East Africa have offeredone or more explanations of the situation. Professor J.N.C. Paul has,in a concise and thorough summary, compiled a compendium of thefactors that scholars and statesmen have suggested explain the limitedsuccesses and rather glaring failures of democratic constitutionalismand judicial review in Africa.145 It would be of little benefit to attemptto summarize that summary. Perhaps for present purposes, however,its most important implication is that despite past shortcomings, con-stitutions, courts and the notion of the rule of law, seen in new waysthrough enlightened eyes, have too much potential as vehicles fororderly and progressive development and the protection of humandignity to be cast aside as no longer relevant or workable. What isneeded, Professor Paul and others suggest, is new inter-disciplinary ex-amination of old ideas, present institutions and future needs. In short,we need work and debate which will better enable us "to see the prob-lems in new contexts.' 146 This process of bringing new ideas to bear on

nevertheless awarded the plaintiff U. Sh4O,OOO damages for false imprisonment and U.Sh60,OOO for injuries inflicted by the police.

14 OSee Paul, Some Observations on Constitutionalism, Judicial Review and Rule of

Law in Aftica, 35 OHIO ST. L.J. 851, 862-69 (1974).

1"Id. at 869.

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old problems has already begun. Lawyers and social scientists in-terested in East Africa, for example, are focusing on political par-ticipation rather than institutional structure,1 7 on law as part of thedevelopment process rather than merely as part of a legislative andjudicial process,14 8 on judicial role perception and opinion style ratherthan methods of appointment, tenure and removal of judges,14 9 andon the nature and role of the bar and the population's comprehensionof and access to the legal process rather than the outcomes of litigatedcases. 150

The traditional debate over judicial review focused primarily uponinstitutional pluralism, democratic theory, and constitutionalism. To-day throughout much of the developing world, certainly in Anglo-phonic Africa, and, perhaps in Tanzania in particular, the focus hasshifted. Yesterday's concern with structure has been replaced bytoday's examination of context and relationship. This is beneficial andnecessary. We must not be so concerned with where the courts stand,as with how, if at all, they listen, comprehend, speak, and respond.

The purpose of this paper has been to explore the problem of therole of the judiciary in the constitutional systems of East Africa. Thefirst decade and a half of independence tells us that in each EastAfrican country the national courts have fulfilled a somewhat differentrole despite largely similar historical origins and constitutional status.It is clear that constitutional appearances had little or nothing to dowith determining that role. While recently it has become fashionableto point out that "[t]he African sun has proved too hot for the frailEuropean flower of parliamentary democracy,"' 5' in fact, with but afew exceptions, Commonwealth African presidents have respected thestructural independence of the judiciary. As institutions, however, thecourts are both passive and vulnerable. They have little political voice

"'See, e.g., Seidman, Participation, Feedback and Control (in an unpublishedms.); H. BIENEN, supra note 59.

"'4See, e.g., Seidman, supra note 147; James, supra note 118; Ghai, supra note117.

14See, e.g., Seidman, supra note 147; LAW AND ITS ADMINISTRATION IN A ONEPARTY STATE: SELECTED SPEECHES OF TELFORD GEORGES, supra note 86.

"'°See, e.g., Y. GHAI & J. MCAUSLAN, supra note 14, at ch. 13; J. BAINBRIDGE,THE STUDY AND TEACHING OF LAW IN AFRICA (1972); LAW AND ITS ADMINISTRATIONIN A ONE PARTY STATE: SELECTED SPEECHES OF TELFORD GEORGES (James & Kassam

eds. Nairobi 1973). Tanzania's Permanent Commission of Enquiry clearly reflects aconcern for these issues.

"'1N.Y. Times, May 2, 1976, § E, at 2, col. 4.

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or physical force to employ in their own promotion or defense. Therole they occupy in the public life of any society will always be a func-tion of the attitudes of those in government who must execute judicialdecisions, of those trained or certified to request them, of those insociety who submit to them, and, just as importantly, of the judgesthemselves who make them. The judiciary's own role perception, infact, and its assessment of the responsibilities and possibilities of itsposition may be the most important factors of all in determining thepart the courts will play. 5 2

Whether they are called "judges" and "courts" or something elsemakes no difference. What does make a difference is that law and theprocedures and institutions established for its promulgation, applica-tion and enforcement represent not only past and present agreementon certain issues of government and society. They also represent a col-lective admission that differences of opinion will arise in the future.For this reason alone, and despite the compelling appeal of currentideology and the pressures of nation-building, as a system they areabrogated or ignored with peril for the peaceful resolution of disputesin the years to come.15

"The obvious example of this being the impact of the views of Chief Justice

Telford Georges of Tanzania, as expressed during his judicial tenure in that countryfrom 1965 to 1971. See generally LAW AND ITS ADMINISTRATION IN A ONE PARTYSTATE: SELECTED SPEECHES OF TELFORD GEORGES, supra note 150.

WSResearch and writing upon this and related topics was begun by the authorunder the supervision of J. S. Read of the School of Oriental and African Studies,University of London, in 1971-72, and continued under J.C.N. Paul at Yale LawSchool in 1976. The guidance and insight of both were invaluable. The conclusions ex-pressed herein, however, except as noted, are those solely of the author. The collectionof materials and research in East Africa was made possible by a travel fellowship fromthe Thomas J, Watson Foundation.

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